Expletive Deleted: The FCC's Continuing Battle Against Indecency

Comedian George Carlin’s recent passing inspired many tributes from a variety of sources, including Perez Hilton and the New York Times. The majority referenced one of his most famous routines: “Seven Words You Can Never Say on Television.” This irreverent and profane monologue, with its unabashed critique of censorship, left its mark not only in the world of comedy but also on the entertainment and broadcasting fields as a whole, especially after the Supreme Court’s 1978 decision in FCC v. Pacifica Foundation, which arose out of a daytime broadcast of a similar Carlin routine in 1973. A lone listener complained to the FCC, and eventually the Supreme Court declared the monologue “indecent, but not obscene.” The decision resulted in the FCC obtaining the power to regulate speech on public channels, specfically in the context of certain language and topics during the hours that children were most likely to be awake. The ruling also permitted the FCC to heavily fine broadcasters who aired “indecent” materials.

The renewed attention to Carlin’s legacy following his death is eerily timely. On March 17, 2008, the Supreme Court announced that, this coming Fall, it will hear its first case on indecency in broadcasting since the Pacifica decision. This time, however, the case has arisen out of the “fleeting expletives,” which are expletives voiced during a live broadcast, that werre uttered by Cher and Nicole Ritchie during the Billboard Music Awards on Fox. The Second Circuit held that the FCC’s decision to fine Fox was “arbitrary and capricious” after it had declined to impose fines following previous incidences of fleeting expletives uttered by U2 front-man Bono. Following the Second Circuit’s decision, Fox also refused to pay a $91,000 fine stemming from the network’s broadcast of digitally obscured nudity during a reality show, “Married by America.”

The question, once again, is how far can the FCC go in censoring and punishing networks for the use of “indecent language” when they can’t control the speaker? The ruling in Pacifica was a narrow one and times have changed. It has become increasingly easy for parents to control the content coming into their living rooms with additions such as the v-chip, parental channel locks, and DVR filters. Blurring the line further is the fact that the very same words blurted out by celebrities are permissible in “bona fide news interviews” or other, more highbrow endeavors.

This distinction is arbitrary and capricious. Policing morality has never been extremely successful in America, and it is time for the Supreme Court to require the FCC to apply its rules equally across the board, perhaps by loosening the moral stranglehold it places on broadcasters. Whatever the Court decides, it’s time that parents took a little more responsibility for the eyes and ears of their own children. Perhaps then the the entire English language, even the parts that some people don’t like, can be returned to the public.